If a married woman has sex with another woman, is that adultery? The New Hampshire Supreme Court, ruling in a divorce case, says no. The court was asked to review a case in which a husband accused his
wife of adultery after she had a sexual relationship with another woman. Robin Mayer of Brownsville, Vt., was named in the divorce proceedings of David and Sian Blanchflower of Hanover, N.H. A family court judge decided Mayer and Sian Blanchflower's relationship did constitute adultery, but Mayer appealed to the state supreme court, arguing that gay sex is not adultery under New Hampshire divorce law. Three of the five justices agreed. Two others--generally considered the court's more conservative members--did not.

Part of the problem in New Hampshire is that adultery is not defined in the state's divorce laws. So the court looked up adultery in Webster's dictionary and found that it mentions intercourse. And it found an 1878 case that referred to adultery as "intercourse from which spurious issue may arise." Other states, including Georgia, Florida, and South Carolina, have defined adultery in broader terms--beyond intercourse--to include gay sex. "I think the majority opinion is unintentionally trivializing same-sex relations and violating modern notions of the sanctity of marriage," said Marcus Hurn, a professor at Franklin Pierce Law Center. A sexual relationship, whether heterosexual or homosexual, is "exactly an equivalent betrayal, and that, I think, is the ordinary meaning most people would give."

But the majority did not want the New Hampshire courts to step onto the slippery slope of defining which sex acts outside intercourse might amount to adultery. "This standard would permit a hundred different judges...to decide just what individual acts are so sexually intimate as to meet the definition," the court said. The dissenters said adultery should be defined more broadly to include other intimate extramarital sexual activity. A relationship is adulterous "because it occurs outside of marriage
and involves intimate sexual activity, not because it involves only one particular sex act," said Chief Justice David Brock and Justice John Broderick.